J-S47007-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

VEGAS GIBSON 

Appellant No. 634 MDA 2020

Appeal from the PCRA Order entered August 6, 2019

In the Court of Common Pleas of Dauphin County

Criminal Division at No: CP-22-CR-0001851-2004

BEFORE: STABILE, J., NICHOLS, J., and STRASSBURGER, J.*

MEMORANDUM BY STABILE, J.: FILED FEBRUARY 09, 2021

Appellant, Vegas Gibson, appeals pro se from the August 6, 2019 order 

entered in the Court of Common Pleas of Dauphin County, denying his fifth 

petition for collateral relief filed pursuant to the Post Conviction Relief Act 

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Appellant contends he has satisfied 

the newly-discovered facts exception to the PCRA’s timeliness requirements 

based on our Supreme Court’s clarification of the term “cumulative evidence.” 

He also asserts that the failure to grant him an opportunity to present 

additional evidence in a new trial violates his equal protection rights under the 

Fourteenth Amendment to the U.S. Constitution. Following review, we affirm.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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The underlying facts are not in dispute. The procedural history is 

similarly undisputed. As reflected in the PCRA court’s memorandum opinion, 

on May 16, 2005, a jury found Appellant guilty of one count each of criminal 

homicide, former convict not to own a firearm, and recklessly endangering 

another person, and two counts of aggravated assault. PCRA Court Opinion, 

7/10/19, at 1. On July 26, 2005, the trial court imposed a sentence of life in 

prison without possibility of parole. Id. Appellant’s initial PCRA petition was 

withdrawn in favor of a direct appeal. This Court affirmed his judgment of 

sentence on November 22, 2006. Our Supreme Court denied his petition for 

allowance of appeal on April 25, 2007. 

Appellant filed a timely first PCRA petition in 2008. Following denial of 

the petition, Appellant filed an appeal with this Court raising eight issues. On 

November 9, 2011, we affirmed the PCRA court’s order, agreeing with the 

PCRA court’s bases for rejecting seven of the eight issues and affirming the 

PCRA court’s rejection of the remaining issue on different grounds. 

Specifically, in that remaining issue, Appellant claimed direct appeal counsel 

was ineffective for failing to challenge the exclusion of Appellant’s testimony 

regarding his knowledge of witness Jason Brown’s violent acts history. The 

testimony, he argued, would have been relevant to a likely aggressor defense. 

He contended the testimony did not constitute hearsay because it was offered 

to establish his state of mind, not the truth of the matter asserted. 
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This Court disagreed with both the ruling of the trial court and the 

conclusion of the PCRA court that the testimony constituted hearsay. 

However, based on a review of the record, the Court determined that 

Appellant failed to demonstrate prejudice from the trial court’s error or 

counsel’s omission on direct appeal. “The jury heard testimony from Appellant 

regarding instances in which he personally observed [Jason] Brown commit 

acts of violence and other witnesses testified at Appellant’s trial about violent 

episodes in which Brown was involved.” Commonwealth v. Gibson, 43 MDA 

2011, unpublished memorandum at 8 (Pa. Super. filed November 9, 2011) 

(citing Notes of Testimony, Trial, 5/16/05-5/23/05, at 738-39). “In view of 

this evidence, the excluded testimony was cumulative.” Id. Because 

Appellant did not demonstrate that the outcome of the trial or direct appeal 

would have been different if counsel had challenged the evidentiary ruling, 

Appellant was not entitled to relief. Id. 

Appellant sought review of this Court’s decision. Our Supreme Court 

denied his petition for allowance of appeal on June 20, 2012. Appellant’s 

second, third and fourth PCRA petitions were dismissed by the PCRA court and 

his subsequent appeals to this Court were unsuccessful.

Appellant filed the instant petition, his fifth, on March 7, 2019, claiming 

that our Supreme Court refined the definition of “cumulative evidence” in 

Commonwealth v. Small, 189 A.3d 961 (Pa. 2018), and that Small applies 
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retroactively to evidence ruled inadmissible as hearsay at Appellant’s trial.1 

By order entered August 6, 2019, the PCRA court dismissed the petition. 

Appellant filed this appeal following reinstatement of his appeal rights nunc 

pro tunc. The PCRA court did not order the filing of a Rule 1925(b) statement 

but did file a statement in lieu of a Rule 1925(a) opinion on May 15, 2020, 

noting that the court’s July 10, 2019 memorandum opinion addressed the 

issue raised on appeal. 

The issue Appellant asks us to consider is:

Whether the [PCRA] court abused its discretion by concluding that 

Commonwealth v. Small, 189 A.3d 961 (Pa. 2018) is not 

applicable to [Appellant] via equal protections of the laws provided 

by our Fourteenth Amendment.

Appellant’s Brief at 4. 

“Our review of the grant or denial of PCRA relief is limited to examining 

whether the PCRA court’s findings of fact are supported by the record, and 

whether its conclusions of law are free from legal error.” Small, 189 A.3d at 

971 (citation omitted). However, before we may consider the merits of 

Appellant’s issue, we must first determine whether we have jurisdiction over 

this appeal. As our Supreme Court recently reiterated, “[I]f a PCRA petition 

is untimely, neither this Court nor the trial court has jurisdiction over the 

petition. Without jurisdiction, we simply do not have the legal authority to 

____________________________________________

1 We note that Small involved a timely first PCRA petition. Therefore, unlike 

the case before us, the PCRA’s time bar was not at issue. 
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address the substantive claims.” Commonwealth v. Reid, 235 A.3d 1124, 

1143 (Pa. 2020) (citation omitted). 

As the PCRA court recognized, a PCRA petition—including a second or 

subsequent petition—must be filed within one year of the time the petitioner’s 

judgment of sentence was final. 42 Pa.C.S.A. § 9545(b). In this case, our 

Supreme Court denied Appellant’s petition for allowance of appeal on April 25, 

2007. He did not seek a writ of certiorari to the United States Supreme Court. 

Therefore, his judgment of sentence became final 90 days later, on July 24, 

2007, at the expiration of the time for seeking a writ of certiorari. U.S.Sup.Ct. 

Rule 13. In accordance with 42 Pa.C.S.A. § 9545, he had until July 24, 2008 

to file a timely PCRA petition. The instant petition, filed on March 7, 2019, is 

untimely on its face. Therefore, neither the PCRA court nor this Court may 

consider the merits of the petition unless Appellant satisfied an exception to 

the PCRA’s timeliness requirements.

In his PCRA petition, Appellant claimed time bar exceptions for newlydiscovered facts under Section 9545(b)(1)(ii) and a newly-recognized 

constitutional right under Section 9545(b)(1)(iii).2 The PCRA court addressed 

his claimed exceptions, stating: 

____________________________________________

2 Section 9545(b) provides, in relevant part: 

Time for filing petition.—
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[Appellant] argues that Small created a constitutional right and 

that right retroactively applies to testimony that was excluded 

from his trial. He argues this right applies via the equal protection 

clause of the 14th Amendment. However, this is not an accurate 

interpretation of Small. In Small, a witness came forward after 

the original trial with testimony to evidence unknown to either 

party at the time of the trial. In other words, the witness provided 

“after-discovered evidence” to the parties. The court in Small 

ruled that this “after-discovered evidence,” evidence which was 

not known to either party at the time of the trial, was not “merely 

cumulative” to arguments made by the defense during trial. The 

testimony [Appellant] is seeking to have reviewed under the 

Small court’s “merely cumulative” definition, is not “afterdiscovered evidence,” and therefore Small does not apply. 

Furthermore, the “merely cumulative” definition is not a 

substantive constitutional right. It is an evidentiary test, and 

therefore not one of the three enumerated timeliness exceptions. 

Finally, the Supreme Court did not hold that Small applies 

retroactively, and therefore it does not apply to [Appellant’s] case.

PCRA Court Opinion, 7/10/19, at 5 (footnote omitted).

____________________________________________

(1) Any petition under this subchapter, including a second or 

subsequent petition, shall be filed within one year of the date the 

judgment becomes final, unless the petition alleges and the 

petitioner proves that:

 . . . . 

(ii) the facts upon which the claim is predicated were 

unknown to the petitioner and could not have been 

ascertained by the exercise of due diligence; or

(iii) the right asserted is a constitutional right that was 

recognized by the Supreme Court of the United States or 

the Supreme Court of Pennsylvania after the time period 

provided in this section and has been held by that court to 

apply retroactively.

42 Pa.C.S.A. § 9545(b)(1). 
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In his brief, Appellant suggests that the PCRA court erred by addressing 

only the constitutional right exception set forth in Section 9545(b)(1)(iii). 

Appellant’s Brief at 13. He contends the court chose not to address Appellant’s 

claimed exception under Section 9545(b)(1)(ii) for newly discovered facts. 

However, we believe the above excerpt reflects that the PCRA court not only 

dismissed the claimed constitutional right exception, but also rejected 

Appellant’s contention the testimony in question constituted “after-discovered 

evidence,” i.e., evidence that was unknown to him at the time of trial. PCRA 

Court Opinion, 7/10/19, at 5. Therefore, the testimony would not be 

“cumulative evidence” under the Small court’s definition. Id. 

In Small, the appellant based his “newly-discovered evidence” 

exception to the PCRA’s time bar on an affidavit obtained post-trial from a 

witness who admitted she withheld information from police when questioned 

after a murder and continued to withhold information when she testified at 

trial. Whereas Small was able to demonstrate he was previously unaware of 

the witness’s testimony, Appellant cannot demonstrate that the facts upon 

which his claim is predicated were unknown to him. In fact, he acknowledges 

he wanted to introduce the evidence at trial as part of his self-defense claim. 

Appellant’s Brief at 11-12. Moreover, as the PCRA court observed, Small 

involved an evidentiary matter, not a constitutional right recognized by our 

Supreme Court as retroactive. As our Supreme Court explained in Reid, 
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“under appropriate circumstances, a judicial opinion can provide 

an independent basis for a new PCRA claim pursuant to 42 Pa.C.S. 

§ 9545(b)(1)(iii), which creates a limited exception” for new 

constitutional rights that have been held to apply retroactively. 

But a judicial opinion — even one which may establish a new 

theory or method of obtaining relief — “does not amount to a new 

‘fact’ under [S]ection 9545(b)(1)(ii) of the PCRA.” 

Reid, 235 A.3d at 1148 (quoting Commonwealth v. Watts, 23 A.3d 980, 

983 n.3 and 987 (Pa. 2011)).

We agree with the PCRA court’s conclusion that Small did not create a 

new constitutional right and that, by Appellant’s own admission, the evidence 

in question was known to Appellant at the time of trial and cannot be 

considered “newly-discovered evidence.” Therefore, as the PCRA court 

correctly determined, Appellant has failed to plead and prove an exception to 

the PCRA’s time bar. As a result, that court, as well as this Court, is precluded 

from considering the merits of Appellant’s petition. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 02/09/2021